Oral Argument Preview: Can a Defendant in a Capital Case Whose Sentence is Overturned on Appeal be Sentenced to Death a Second Time Under an Amended Statute Not in Effect on the First Go-Around?

Update: On June 14, 2012, the Court handed down a merit decision in this case, affirming the re-imposition of the death penalty.

On November 16, the Supreme Court of Ohio will hear oral arguments in the case of State v. White, 2009-1661. The issue in this case is whether retroactive application of Ohio’s resentencing statute, R.C. 2929.06, is unconstitutional as applied, by allowing the State to seek the death penalty in offender resentencing proceedings, when that option was not available to the State under a previous version of the statute.

In 1996, Maxwell White was convicted of aggravated murder, and the trial court imposed the death penalty upon a jury’s recommendation. In a 2005 habeas appeal, the Sixth Circuit Court of Appeals reversed and remanded the sentence based on an error in voir dire. In 2007, White’s counsel filed motions seeking to prohibit the state from seeking the death penalty again upon remand. The trial court found R.C. 2929.06 unconstitutional as applied retroactively to White.

The Fifth District Court of Appeals reversed and found that the state could again seek the death penalty against White. It explained that although Section 28, Article II of the Ohio Constitution prohibits retroactive laws, not all laws that apply retroactively are unconstitutionally retroactive. The test for unconstitutional retroactivity is to determine first whether the General Assembly intended the statute to apply retroactively, and if so, whether the law is remedial or substantive. Remedial statutes affect “the methods and procedure by which rights are recognized, protected and enforced,” or “merely substitute a new or more appropriate remedy for the enforcement of an existing right.” Remedial statutes may be applied retroactively. In contrast, a law is substantive if it “impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties or obligation, or liabilities as to a past transaction, or creates a new right.” Substantive laws may not apply retroactively.

Applying this test, the Fifth District found that the General Assembly intended for R.C. 2929.06 to apply retroactively. It then found that the statute was remedial in nature. At the time White committed the offense, R.C. 2929.06 provided two options for resentencing: life imprisonment without parole, or life imprisonment with parole eligibility after either twenty or thirty years imprisonment. However, those options are available only if the original sentence was vacated in one of three circumstances (the court of appeals could not affirm the sentence under the standards imposed by R.C. 2929.05; the statutory procedure for imposing the sentence was found unconstitutional; or the sentence was vacated pursuant to R.C. 2929.05(C)). Because the sentence was vacated for entirely different reasons than those set out in the statute, the State’s resentencing options were not limited to those three statutory options. So White did not have a vested right not to face the death penalty upon resentencing. Because the statute did not impair a vested right, it was remedial and could be applied retroactively.

On appeal to the Supreme Court of Ohio, White argues that the statute is substantive because it imposes several burdens that did not exist before, including forcing White to defend himself again before a jury and requiring him to present mitigating evidence in his defense. Furthermore, the statute as amended imposes a new penalty (death), which did not exist before.

In response, the State argues that the statute is procedural only, passed in order to “correct the loophole” in the state’s resentencing statute that did not make the death penalty available in resentencing proceedings. The State also argues that once a defendant’s conviction is final, he has no expectation of finality in any procedures that exist at the time of the offense or conviction.

A number of amici have filed briefs on behalf of White, including The Ohio Association of Criminal Defense Lawyers and the American Civil Liberties Union. OACDL argues that the question of retroactivity is not properly before the court. Instead, it says, the Sixth Circuit’s reason for vacating the death sentence in the first place—the trial court’s failure to grant White’s motion to dismiss a juror for cause—is not an “error that occurred in the sentencing phase” under R.C. 2929.06(B). OADCL argues that under the version of the statute in effect when White committed the offense, the trial court was not authorized to impanel a new jury to consider re-imposition of the death sentence where the original sentence was vacated on appeal for error at the sentencing phase. Under these circumstances, where the original sentence was vacated for error at the jury selection phase rather than the sentencing phase, the statute does not authorize the re-imposition of the death sentence.

In support of the state, the Ohio Attorney General has filed an amicus brief. It argues that under these circumstances, R.C. 2929.06(B) does apply to White (contrary to OADCL’s argument) because the Sixth Circuit’s decision vacating the sentence was based on the issue of juror impartiality as to the sentencing phase of trial. The AG also argues that the statute is remedial because it merely affects the procedures for re-sentencing—allowing the empanelment of a new jury—and does not affect the types of sentences White could have been subjected to at the time he committed the crime.

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Marianna Brown Bettman

Marianna Brown Bettman is Distinguished Teaching Professor and Professor of Practice Emerita at the University of Cincinnati College of Law, where she taught torts, legal ethics, and a seminar on the Supreme Court of Ohio. She is also a former Ohio state court of appeals judge. Professor Bettman is a frequent presenter on Supreme Court of Ohio cases at Continuing Legal and Judicial Education seminars and conferences including the Ohio Judicial Conference. She also provides appellate consulting services to attorneys.